People v. Hooks , 89 Mich. App. 124 ( 1979 )

89 Mich. App. 124 (1979) 279 N.W.2d 598

PEOPLE
v.
HOOKS

Docket No. 77-4902.

Michigan Court of Appeals.

Decided March 19, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

John C. Mouradian, for defendant.

Before: D.C. RILEY, P.J., and BRONSON and T. GILLESPIE,^[*] JJ.

D.C. RILEY, P.J.

This is an appeal from a probation revocation. Phyllis Hooks pled guilty to issuing a check without account or credit, MCL 750.131a; MSA 28.326(1), in February of 1972. She was sentenced to a term of 3 years probation, the first 6 months to be served in the Detroit House of Correction. On September 13, 1976, a notice of probation violation was filed, charging that during probation, defendant had three times been convicted of larceny under $100, MCL 750.356; MSA 28.588, and further had not reported to her probation officer since April 20, 1976. Apparently no appeals have been taken from the larceny convictions.

Defendant's probation violation notice included the following provision:

"Wherefore this Court is requested to issue a warrant for probationer's apprehension and detention pending a hearing and to set a date for a hearing on said alleged violation.

"Defendant to be notified by a service of a copy of the petition and of this order, to present witnesses if he desires."

At a later hearing before the court the ensuing colloquy occurred:

"THE COURT: * * * Now, have you — do you have a copy of that notice of probation violation?

"MS. HOOKS: Yes.

"THE COURT: And you've seen this thing and the Court appointed Mr. Arduin as your attorney in the case. Are you satisfied with his representation?

"MS. HOOKS: Yes.

"THE COURT: All right. How does she plead as to — .

"MR. ARDUIN: She pleads guilty, your Honor, to the charge of violation of probation and she has extenuating circumstances and places herself upon the mercy of the Court.

"THE COURT: What extenuating circumstances are there for having criminal convictions while she's on probation?

"MR. ARDUIN: Oh, that, your Honor, she does not deny but she has served the first six months as your Honor has ordered. * * *"

Defendant's probation was revoked and sentence was imposed of 1 year 11 months to 2 years.

Defendant initially alleges on appeal that she was not advised of her right to a probation violation hearing. There is no doubt that a defendant charged with breaching the terms of probation is afforded certain minimal procedural due process rights, including a contested hearing on the charge. MCL 771.4; MSA 28.1134, People v Michael Brown, 72 Mich. App. 7, 10-12; 248 NW2d 695 (1976). This Court has frequently held that a probationer must be advised of that right before a guilty plea can be accepted, and it so informed, defendant waives the right by the subsequent plea. People v Michael Brown, supra, People v Allen, 71 Mich. App. 465; 248 NW2d 588 (1976), People v Hardin, 70 Mich. App. 204; 245 NW2d 566 (1976).

Defendant relies on People v Radney, 81 Mich. App. 303; 265 NW2d 128 (1978), and People v Michael Brown, supra. In Radney defendant appeared before the court for arraignment without an attorney present, and in response to the court's questioning stated that he had no answer to the charges. It was held that neither the form language on the notice of violations nor the trial judge's mention of the word "hearing" in his colloquy with defendant was sufficient to inform the defendant of his right to rebut the charges. Significantly, however, the Court noted that the record did not show that defendant had, in fact, admitted the charged violations.

In Brown, defendant was served with written copies of charges of probation violation. Defendant appeared at the hearing, rejected the trial judge's offer of appointed counsel and admitted the probation violations. The Court reversed the revocation of defendant's probation because "defendant was not informed on the record of the possibility of a hearing", 72 Mich App at 14, and because the Court could not find anything in the record before it which indicated that defendant was aware of the availability of a hearing.

The prosecution argues that both Radney and Brown are distinguishable from the instant case. We see merit in this contention. Here defendant was given sufficient notice of probation violation. Defendant was fully represented by counsel and clearly admitted her probation violations to the court. In People v Darrell, 72 Mich. App. 710, 713-714; 250 NW2d 751 (1976), a bench warrant was served on the defendant, notifying him of the charges and containing language similar to the present case:

"Wherefore, YOUR PETITIONER PRAYS that a Bench Warrant be issued for the apprehension and detention of said probationer pending violation hearing by this court to determine whether or not said probation order shall be revoked."

As defendant was represented by counsel and also admitted the probation violation, the Darrell Court concluded that, under the totality of the circumstances, defendant's due process procedural rights were adequately safeguarded, despite the fact that the defendant had not been told on the record by the trial judge of his right to a contested hearing.

Although we note the existence of a disavowed intent to impose a "checklist format" on trial judges, see People v Gaudett, 77 Mich. App. 496, 501-502; 258 NW2d 535 (1977), we affirm our concern for close adherence to those due process rights given defendants involving probation revocation. Nevertheless, under the present facts, any error was, as a practical matter, non-prejudicial inasmuch as the violations forming the basis for probation revocation consisted in part of three convictions from which no appeal was taken. See People v Darrell, supra at 713. Unlike situations where the grounds for revocation are subject to refutation, convictions leave a defendant little room for polemics. The record also suggests that defendant pled guilty while aware of her opportunity to present extenuating circumstances to be considered in sentencing.

Defendant next alleges that her sentence of 1 year, 11 months to 2 years^[1] contravenes the provisions of the indeterminate sentencing act, MCL 769.8; MSA 28.1080, and therefore runs afoul of the rule promulgated in People v Tanner, 387 Mich. 683; 199 NW2d 202 (1972). The statute provides that:

"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. * * *"

Tanner held that a sentence which exceeds two-thirds of the maximum does not comply with the act. Thus, if the indeterminate sentencing act applies to the instant case, the trial judge's imposition of sentence was erroneous.

The prosecution maintains that reference to MCL 769.8; MSA 28.1080 is inappropriate since defendant had been convicted of misdemeanors antecedent to the offense at bar. It argues that misdemeanors are crimes and that the punishment for some misdemeanors includes imprisonment in the Detroit House of Correction (hereinafter referred to as DeHoCo).

The act applies "[w]hen any person [is] convicted for the first time of crime" punishable by terms of imprisonment in the enumerated facilities. All the facilities are state prisons with the exception of DeHoCo.

DeHoCo plays a unique and dual role in the state's corrections system. It operates as an equivalent to a state prison when, pursuant to MCL 802.51; MSA 28.1841, it receives women prisoners convicted of crimes or offenses punishable by imprisonment in a state prison. However, DeHoCo is classified as an equivalent to a county jail by MCL 769.28; MSA 28.1097(1). That section provides that persons convicted of crimes punishable by imprisonment for a maximum of one year or less shall be sentenced to a county jail or to DeHoCo and not to the state penal institution.

This Court has held that the indeterminate sentencing act is inapplicable to any jail sentence imposed pursuant to MCL 769.28; MSA 28.1097(1). People v Lyles, 76 Mich. App. 688; 257 NW2d 220 (1977), People v Leonard, 51 Mich. App. 368; 214 NW2d 888 (1974), lv den 391 Mich. 827 (1974). These cases would suggest that the act applies only to DeHoCo's role as a state prison.^[2]

The record fails to disclose the circumstances surrounding defendant's previous misdemeanor convictions. Nevertheless, it is unnecessary to remand this case to determine whether defendant's prior convictions were punishable by more than one year in prison, for the result in either situation requires modification of the present sentence.

If defendant's misdemeanors were punishable by less than one-year imprisonment, defendant's present felony conviction, for the reasons cited above, would be governed by the indeterminate sentencing act and Tanner would therefore apply. At the same time, however, the definitional section of the Code of Criminal Procedure, MCL 760.1 et seq.; MSA 28.841 et seq., of which the indeterminate sentencing act is a part, interprets a felony as "an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than 1 year or an offense expressly designated by law to be a felony". MCL 761.1(g); MSA 28.843(g).

If defendant's previous convictions were punishable by more than one year, even though qualifying as misdemeanors under other statutory provisions outside the Code of Criminal Procedure,^[3] they would be treated as felonies for purposes of those laws contained in the code, which laws include the indeterminate sentencing act.^[4]

In Brinson v Genesee Circuit Judge, 403 Mich. 676; 272 NW2d 513 (1978), the Michigan Supreme Court held that defendants, chargeable under the Code of Criminal Procedure as habitual offenders, MCL 769.10-769.12; MSA 28.1082-28.1084 (because of previous felony convictions), against whom no supplemental proceedings were instituted are to be afforded the protection of the act and the concurrent benefit of Tanner.

Thus, according to either possibility, defendant's sentence for issuing a check without account or credit is modified to 1 year 4 months to 2 years.

Affirmed in part, modified in part.

T. GILLESPIE, J., concurred.

BRONSON, J. (dissenting).

I dissent for the reasons stated in People v Radney, 81 Mich. App. 303, 307; 265 NW2d 128 (1978), People v Darrell, 72 Mich. App. 710, 714; 250 NW2d 751 (1976) (BRONSON, J., dissenting), and People v Michael Brown, 72 Mich. App. 7; 248 NW2d 695 (1976).

Defendant was given a notice of violation which stated that she had a right to a hearing. I would affirm defendant's conviction even in the absence of the court directly informing the defendant of her right to a hearing if there had been any indication on the notice itself or anywhere in the record that defendant had read the notice and was aware of her right to a hearing and understood what that right entailed. However, there was no such indication. I cannot assume from a silent record that defendant knew that she had a right to a hearing and intelligently and voluntarily waived that right. I would reverse.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] MCL 771.4; MSA 28.1134 provides that if probation is terminated or revoked, the trial court may sentence a probationer in the same manner and to the same penalty as it might have done if the probation order had never been made. The maximum jail term upon conviction of issuing a check without account or credit in violation of MCL 750.131a; MSA 28.326(1) is 2 years.

[2] This result is also necessary to avoid a constitutional problem with the indeterminate sentencing act. It appears that the only way a person can be sent to DeHoCo under MCL 769.28; MSA 28.1097(1) is if the county board of supervisors of the county in which a defendant was convicted has an agreement with DeHoCo that the county could send its prisoners there. MCL 802.8; MSA 28.1818. If the indeterminate sentencing act were to apply to DeHoCo's role as a county jail, it would present serious equal protection problems since the statute would distinguish between prisoners sentenced from a county which has an agreement with DeHoCo and those sentenced from counties which had no such agreement.

[3] See, e.g., MCL 750.324; MSA 28.556, which defines negligent homicide as a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years or by a fine of not more than $2,000, or by both such fine and imprisonment.

[4] MCL 761.1(g); MSA 28.843(g) was amended in 1974 by 1974 PA 63, § 1. The previous definition of felony was "an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison". Assuming any of defendant's previous convictions predate the amendment, the result would remain the same by virtue of MCL 769.28; MSA 28.1097(1) which requires that persons convicted of crimes punishable by imprisonment for one year or less shall not be sentenced to the state penal institution.